FCMC 6082 /2014
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MATRIMONIAL CAUSES NO. 6082 OF 2014
|Coram: Deputy District Judge G. Own in Chambers (Not Open to Public)
|Date of Hearing: 19 November 2015
|Date of Decision: 10 December 2015
D E C I S I O N
(Maintenance Pending Suit)
1. This is an application by the Petitioner (“Wife”) by way of her summons dated 28 April 2015 seeking maintenance pending suit against the 1st Respondent (“Husband”) backdated to 1st June 2014. The amount sought is HK$70,000 a month. In addition, the Wife also seeks reinstatement of her American Express Centurion Supplementary card (“AE Card”) which was cancelled by the 1st Respondent without her knowledge.
2. There is no application for litigation funding by the Wife.
3. The Wife was represented by Miss Anita Yip, S.C., leading Miss Christina Tseng. The 1st Respondent was represented by Mr. Robert Pang, S.C., leading Mr Eugene Yim for this hearing.
4. One day before this hearing, this Court handed down its Decision on the Wife’s application for an extended period of discovery of financial documents against the Husband where I have set out the background of the parties. Hence, I do not intend to repeat what had already been set out save and in so far as it is necessary for this Decision.
5. The parties were married in 1987 and, despite numerous artificial fertility treatments over the years, no child was born out of this 27-year marriage. The Wife filed her Petition in May 2014 relying on the fact of ‘Unreasonable Behaviour’ of the Husband. Decree Nisi was granted in August 2014.
6. Suffice to say that when the parties married in 1987, the Husband was a site foreman and the Wife was a bank teller. Shortly after the marriage, the Wife used her savings and purchased a property at Riviera Gardens under her sole name at a consideration of HK$374,000 (“1st Riviera property”). On 2 November 1988, the Wife added the Husband’s name to the title of the 1st Riviera property as joint tenants. The gross area of this property is about 529 sq. ft. Then, the parties moved out from the Husband’s mother’s place where they had resided after married to this 1st Riviera property as their first matrimonial home.
7. Around 1991, the Husband set up a sole proprietorship business under the name HF Engineering Company (“HF”) and started his own business taking up construction projects. Since the Husband was only educated up to Form 3 level, the Wife handled all the administrative work after her working hours. The Husband’s business was mainly contractor doing maintenance, repair and renovation work for various government infrastructures.
8. In 1993, the Husband incorporated his company as a limited company, namely, HF Construction Engineering Co. Ltd., with himself holding 60% shareholding and the Wife holding the remaining 40%. The Wife’s role of handling administrative work for the Husband continued and remained unchanged. The Husband’s business became profitable and his career started to take off.
9. Around 1995, the parties bought another property also at Riviera Gardens which was about 829 sq. ft (“2nd Riviera property”) where they moved in. The earlier and smaller 1st Riviera property was then leased to the Wife’s elder sister.
10. In August 1996, upon discussion with the Husband, the Wife resigned from her full time employment when she was at that time already an assistant branch bank manager. Since then she became a full time housewife. The Wife assisted the Husband in his business development and tried to get pregnant which sadly to no avail.
11. In 1998, the Husband’s business became lucrative. The parties bought a property at Symphony Bay, Sai Kung, New Territories, at the price of HK$6,504,100 together with a car parking space at the price of HK$500,000. This property had 4 bedrooms and the gross area was about 1,180 square feet including one storage room. In June 1999, the parties sold the 2nd Riviera property for HK$2,775,000.
12. In 2001, the Husband made a confession to the Wife that he had had an extra marital affair with the 2nd Respondent who was already pregnant with his child. The Wife was assured by the Husband that he did not want a divorce and was only meant to have a child.
13. The Husband’s relationship with the 2nd Respondent, however, went on and on until now. Over the years, the 2nd Respondent gave birth to 4 children with the Husband who are now respectively of the age of 13, 10, 8 and 4. It is common ground that such relationship ‘running in parallel’ to the marital relationship with the Wife.
14. At the same time, the Husband’s business continued to grow. In July 2001, he formed a new construction company PB Engineering Limited (“PB”) with a partner Mr. Yeung, each holding equal shares in the company. It is around this time that the Husband started not to let the Wife involved in his businesses dealings and transactions. The Wife was then kept in the dark as to the Husband’s financial position and his income generated from the businesses.
15. In November 2005, the HF Construction Co. Ltd was deregistered as a defunct private company.
16. In October 2007, the Husband and his partner Mr. Yeung formed another company UB Engineering Limited (“UB”) in equal shares to replace the PB Company.
17. In April 2008, the Husband and his partner Mr. Yeung formed another company SW Engineering Limited (“SW”) also in equal shares to run the business along with UB. Around this time the parties bought the property at Manhattan Hill where they resided as their matrimonial home prior to the Husband’s sudden departure in May 2014.
18. On 2 May 2014, the Husband abruptly packed his personal belongings and left the matrimonial home at Manhattan Hill whilst the Wife was at work. The Husband went to live with the 2nd Respondent in Shatin. The Husband left behind 2 letters of the same date in the letter box to the Wife which was written in Chinese by him. The Wife was shocked, devastated and shattered by the Husband’s all of a sudden departure.
The applicable principles
19. Section 3 of the Matrimonial Proceedings and Property Ordinance, Cap.192 (“MPPO”) provides the Court the discretionary power to make interim orders requiring one party to the marriage to make to the other periodical payments for his or her maintenance as the court thinks reasonable having considered all the circumstances of the case (see HJFG v. KCY  1 HKLRD 95). The overriding principle is one of ‘reasonableness’.
20. It is useful to recite those paragraphs of Hartmann JA (as he then was) in the HJFG case :-
“33. Jurisdiction to award maintenance pending suit to a spouse is statutory, being governed by the provisions of s.3 of the Matrimonial Proceedings and Property Ordinance, Cap.192. By that section the court is given a discretion to make an order requiring either party to the marriage to make to the other such periodical payments for his or her ‘maintenance’ as the court thinks ‘reasonable’, subject to the condition that the duration of any such order is limited to the period of what may broadly be called the divorce litigation.
34. By definition, therefore, maintenance pending suit is restricted to payments which constitute ‘maintenance’, which are reasonable in the circumstances and which will endure for no longer than it takes to determine the divorce litigation. ‘Maintenance’ is a broad concept. I do not seek to define its exact meaning but it seems to me that it must be restricted to those payments necessary to meet the recurring costs of living at whatever standard of living is appropriate. That being the case, no matter how great the wealth of the parties and how unevenly distributed that wealth may be at the time an application for interim maintenance is made, the court has no jurisdiction to make orders which for all practical purposes result in a form of pre-trial capital re-balancing. In the present case, the judge recognised the long-established approach of looking to the “immediate and reasonable needs” of the wife and son.
35. As to the amount of maintenance pending suit that may be paid, the Ordinance provides only that it must be ‘reasonable’, that is having regard to the circumstances of the case, that it must be fair.
36. An important factor in determining fairness is a consideration of the marital standard of living. In this regard, each case must be considered according to its own circumstances. It is not simply to be assumed that great wealth equates to great extravagance. Some married couples who enjoy great wealth spend with comparative modesty and with a discipline born of discretion, others enjoy consumption on a grand scale.
37. The principles that have emerged over time to guide judges in matters of interim maintenance have been fashioned in the main to ensure fairness. This is well illustrated in the judgment of Nicholas Mostyn, QC, sitting then as a deputy High Court judge, in TL v. ML and Others (Ancillary Relief : Claim against Assets of Extended Family)  1 FLR 1263, at 1289, in which, having looked at earlier authorities, he derived the following principles that speak specifically to fairness or are based on the need to ensure it.
For present purposes, it is sufficient to cite the relevant principles without citing the judge’s reference to the source of those principles :
i. The sole criterion to be applied in determining the application is ‘reasonableness’, which is synonymous with ‘fairness’.
ii. A very important factor in determining fairness is the marital standard of living. This is...